This appeal concerns the warning to a jury trying a criminal case that the evidence of an accomplice to a crime is to be treated with particular circumspection because it is dangerous to act on it alone unless corroborated. Experience has shown that an accomplice may put people in the frame as perpetrators of a crime who may not have been involved at all, or may exaggerate the role of a particular accused, perhaps out of the kind of bitterness that typifies relationships within a criminal gang. Hence, where an accomplice gives evidence, the jury trying a person accused of a crime are warned in general terms of that danger. At the trial of Jonathan Fitzgerald for the murder of Noel Crawford in Limerick on 18 December 2006, one witness was made the subject of such a warning by the trial judge but another was not. Both witnesses were in the house to which the accused and others were alleged to have had resort after the murder and from which he and others had set out to the victim’s residence shortly before.

At the trial, in the cross-examination of the witness not made subject of an accomplice warning, it was never suggested to her that she was an accomplice, either before or after the fact, to the murder. The issue on appeal, therefore, is whether the accomplice warning is always to be given, even where the point is not relied upon by counsel for the accused. This accused was convicted of murder by a jury in the Central Criminal Court on 7 February 2011 and later sentenced to life imprisonment by White J, the trial judge.

Background

In December 2006, Laura Kelly was living in a house in O’Malley Park, a large housing estate in Limerick city, with her partner Jonathan Kiely and four young children. Before retiring for the night on Sunday the 17th of that month, approaching midnight, a phone call came from Raymond Fitzgerald, her nephew. He was asking to come over and stay at the house. He arrived shortly after, accompanied, unexpectedly it seems, by Jonathan Fitzgerald, the accused, and Michael O’Callaghan. All had travelled over to O’Malley Park in a white minibus. Conversation among them was overheard by her about a possible attack on Paul Crawford, who also lived in the estate, with reference to making a petrol bomb, one of them saying “[Expletive] the car, throw it at the house, in the window and when one of them comes out, we’ll get them.” On hearing this from the upstairs part of the house, she shouted to her partner, who kept petrol for his brushes because of his job as a house painter, to throw it away. The accused Jonathan Fitzgerald and Michael O’Callaghan only stayed in the house for about twenty minutes and then left. Her nephew Raymond Fitzgerald remained when they had gone. She had told them that she wanted them “out of my house.” In the back garden, she next saw these two men putting on bulletproof vests. Some little time later, she and her partner heard two shots. Then, shortly after, there was banging on the door. Her nephew opened the door to Michael O’Callaghan and Jonathan Fitzgerald. The latter said: “I got him, I got him, I got Paul Crawford.” In fact, it was Noel Crawford who had been shot dead.

Jonathan Fitzgerald, according to her account, was very bloodied and went to the kitchen sink to wash himself. She saw a shotgun on the kitchen table. Michael O’Callaghan was, meanwhile, washing upstairs. Jonathan Fitzgerald took off his clothes and put them into the fireplace to burn them in the fire. She asked them to leave. By this stage, one of the children had woken up. The couple had closed circuit television cameras as a security measure in their house and Michael O’Callaghan, because these would show their comings and goings, asked her to rewind the tape, thus erasing it. Her attitude was “I mean, I had to do it, didn’t I?” She described her state of mind as “[p]anic and my God, like, you know, like, absolute fear.” Thus she claimed to have acted under duress.

Meanwhile the clothes were burning in the fire and, on her narrative, there was a great deal of smoke which Michael O’Callaghan said would draw attention to the house. The men drank a Baileys Irish Cream liqueur. Shortly after that, shots were fired at the house and some of the windows came in. Gardaí from the armed response unit then arrived but she would not let them in. She told them that she had been shot at because of some kind of cooperation with them as police officers, not due to the murderous attack that had earlier been carried out. Asked why she said this she said: “I couldn’t; I was told not to … [by] Jonathan Fitz.” She shouted to the gardaí to leave. More of the children had by then woken up. On going upstairs, she found a bullet on top of her daughter in her bed. As she put it “I was absolutely boiling.” She then went downstairs and told the two men to get out. They did not leave and were there when the gardaí returned some hours later in the morning. She described her reaction to the men being in her house as ““What are you doing here …” -- you know: “What are you doing here?” I was, like, terrified, like, I didn’t know what to do.”” Her instructions from Jonathan Fitzgerald as to what to say to the gardaí as to any question about the men in her house were “We came up after your window got shot in, right? Do you hear me?” Her reaction she described as feeling “[t]he way anyone would, I suppose. I was afraid that I’d be body number two.”

The Trial

While there was other evidence putting the accused in O’Malley Park at around the time of these events, and some relevant mobile telephone records, it is clear that the evidence of Jonathan Kiely and of Laura Kelly regarding conduct consistent with the commission of the murder and of admissions afterwards was a central building block of the prosecution case. As regards Jonathan Kiely, he had given a witness statement to the gardaí, but at the trial he then had claimed to be a drug addict. Consequently, he testified that he had no recollection of anything; not even of ever having been interviewed by detectives. His evidence was admitted by the trial judge through his prior recorded statements under section 16 of the Criminal Justice Act 2006. The jury were played video recordings of his interviews, in addition to written statements by him. The trial judge, in respect of him, warned the jury that when he was arrested in the aftermath of the murder, under section 30 of the Offences Against the State Act 1939, he had been a suspect. Rightly, the trial judge left to the jury the issue of fact as to whether he had been an accomplice of the accused. He warned them to be “very wary of his evidence” and that the jury “should look for corroboration of his testimony.” What that was, the trial judge defined and pointed to the pieces of evidence which the jury might properly regard, if accepted by them, as evidence independent of that witness tending to show that the accused had committed the crime.

Counsel for the prosecution, on the day prior to the judge’s charge, had addressed the judge “out of an excess of caution”, and asked that counsel for the defence might “consider this overnight, whether there’s a need for an accomplice warning” pointing out that in their earlier statements to the gardaí “Laura Kelly and Johathan Kiely … might have been accessories after the fact and that might bring into view the accomplice warning”. The defence made no such application either that day or the next or ever. The trial judge decided of his own consideration of the evidence that Jonathan Kiely might be regarded as that of an accomplice “insofar as he was arrested on suspicion of possession of that particular firearm”, referencing the shotgun. In the absence of any defence submission, he did not put to the jury any issue as to whether Laura Kelly might be an accomplice or attach any warning as to that issue.

Court of Appeal judgment and submissions on appeal

It is useful to briefly summarise the submissions on each side. For Jonathan Fitzgerald, it is claimed that no matter whether counsel for the defence has put it to a prosecution witness in cross-examination that he or she may have acted in support of the commission of a crime or its later concealment, as an accomplice in other words, once any circumstance gives any possible indication that a witness may be an accomplice, then an accomplice warning should be given by the trial judge to the jury. This, it is contended, is an absolute rule and is not dependent on whether the matter has been raised or put to any witness on the instructions of the accused. Rather, it is argued on behalf of the accused, the duty to control the trial and to give the accomplice warning, being a matter of law, falls to the judge and not to counsel. Rules of law, it is claimed, are not dependent on the adversarial ebb and flow of a trial but, rather, are contended to be constant.

For the Director of Public Prosecutions, it is countered that the manner in which defence counsel approach a trial is not to be second-guessed by the trial judge. Rather, the prosecution contention is that since the duty of counsel is to put to a witness such matters as may be argued which tend to undermine that witness’s testimony, it is a matter of professional judgement as to whether an allegation that might give rise to any special warning by the trial judge might be of benefit to the accused. In that regard, counsel is, on the accused’s submissions, acting on instructions. Thus...